In re the Constitution, Vanva v Minister of Internal Affairs [2002] VUSC 54; SC 056-01 (11 February 2002)

IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU

(Civil Jurisdiction)

Civil Case No.56 of 2001

IN THE MATTER OF THE CONSTITUTION

Of the Republic of Vanuatu

AND

IN THE MATTER OF THE MUNICIPALITIES
ACT [CAP. 126]

IN THE MATTER OF: An Application by
HARRY VANVA, LESLEY TARI, HAM JAPETH, AVOCK JACK, JEAN DELAVEAU, JOE NARUA, ROY BONG, SAM NATHANA AND GEORGE TABIMAL for declaratory relief regarding the purported suspension by the Hon. Minister of Internal Affairs

BETWEEN:

HARRY VANVA, LESLEY TARI, HAM JAPETH,
AVOCK JACK, JEAN DELAVEAU, JOE NARUA AND GEORGE TABIMAL

Joint Petitioners

AND:

HONOURABLE MINISTER OF INTERNAL AFFAIRS

First Respondent

AND:

PAUL HAKWA

Second Respondent

Coram: Before Mr Justice Oliver A. Saksak
Ms Cynthia Thomas – Clerk

Mr Saling Stephens of Counsel for the Joint Petitioner
Mr George Nakou for the First and Second Respondents.

Date of Hearing: 31st January, 2002.

JUDGEMENT

Nature

This is a petition issued by the Petitioners under section 218 of the CPC Act [CAP.136]. The Petitioners namely Harry Vanva, Lesley Tari, Ham Japeth, Avock Jack, Jean Delaveau, Joe Narua, Roy Bong, Sam Nathana and George Tabimal are all Councillors of the now suspended Luganville Municipality. Each Petitioner was duly elected as a Councillor to serve for a period of 4 years from February 1999. On 19^th October 2001 the First Respondent purportedly suspended the council on which the Petitioners are members. On 2^nd November 2001 the First Respondent appointed the Second Respondent, Mr Paul Hakwa as Commissioner to exercise all the powers of the suspended council for the period of suspension. This was done in accordance with section 61(3) of the Municipality Act [CAP.126].

Allegations

1. That the Respondents failed to specify any grounds for declaring any or all of the Petitioners’ officers on suspension.
   
2. That each of the Petitioners were suspended without the benefit of knowing what allegation had been held against them and the Petitioners were denied the opportunity to answer any allegations (if any existed).
   
3. That the appointment of the Second Respondent as Commissioner of Luganville Municipal Council is not in accordance with the law.
   
4. That the actions or omissions of the Respondents are ultra vires the Municipality Act and/or constitute administrative conduct that is unreasonable or undertaken for improper purposes or otherwise unlawful and should be quashed as invalid.
   
5. Further and/or in the alternative that the actions or omissions of the Respondents constituted two constitutional breaches of the Petitioners’ rights to –
   • (a) the protection of the Law – Art. 5(1)(d), and
   • (b) the right to freedom of assembly and association – Art.5(1)(b).
     
6. Further and/or in the alternative that the Respondents have breached the rules of natural justice.
   

Orders

For those reasons the Petitioners seek the grant of the following Orders:-

7. An order re-instating the Petitioners herein to their offices as Councillors of the Luganville Municipality.
   
8. A Declaration that the purported suspensions issued to the Petitioners by the Respondent on 19^th October 2001 are null and void.
   
9. A Declaration that the purported appointment of the Second Respondent was not done in accordance with the law and is therefore invalid and of no effect.
   
10. An Order, awarding compensation to the Petitioners for breaches of their constitutional rights.
    

Findings

From the evidence before me I find as follows:-

11. Mr Martin Tete, Principal Finance Officer was validly appointed by the former Minister of Internal Affairs to inquire into the affairs of the Luganville Municipality. That appointment was valid and proper and was made in accordance with section 61 of the Municipalities Act [CAP. 126] (the Act) – ref. to A1 – Letter dated 23 Feb. 2000.
    
12. The Town Clerk of the then Council was accordingly advised and informed of such inquiry. ref. A2 – Letter dated 28 February 2000.
    
13. Mr Tete commenced his inquiry on 28th February 2000. The full and detailed facts of his findings are contained in A3 – A yellow Book headed “Inquiry Into The Affairs of the Luganville Municipal Council”
    
14. Mr Sam Toa was Mayor of the Council at the time. On 27th April 2000 the then Minister wrote to Mr Toa informing him about the Report and the need to address certain problems canvassed in it as a matter of urgency. Ref.A4 – Letter dated 27 April 2000.
    
15. On 15th May 2000 Mr Sam Toa wrote to the then Minister Mr Barnabas Tabi informing him that his council had complied with all the instructions contained in the Ministers’ letter of 27th April 2000. ref. A-5 letter dated 15 May 2000.
    
16. On 10th September 2001 the current Minister Mr Joe Natuman appointed Mr Tete to do a follow-up inquiry which was to be completed within 1 week. The letter was copied to the Acting Director General of the Minister of Internal Affairs and to First Political Advisor of the Minister. Whilst the appointment was valid under the provision of section 61(1) of the Act, the Minister omitted to put the Council led by Mr Vanva on notice as the former Minister had done by addressing copies of the letter to the Clerk of the Council.
    
17. A follow-up inquiry revealed that the same the current Council had reappointed the previous Town Clerk and the previous Treasurer into their positions, when the First Inquiry revealed that those positions were occupied by unqualified persons. Further, it was revealed that although the instruction concerning audit was complied with, it was done without the approval of the Auditor General.
    
18. On 17th September, 2001, a Second Report was submitted to the Minster by Mr Tete – ref. A7 dated 17th September 2001.
    
19. The Findings of Mr Tete reveal that Directives No.2, 3 and 4 were not complied with. The Report contained further findings and recommendations. One of those findings reveal cash advances to councillors the majority of whom are the Petitioner’s herein to the outstanding amount of VT 2.187.590.
    
20. As a result of the Second Report with its findings and recommendations the Minister suspended the current Mayor and his Council by letter dated 19th October 2001.
    
21. There was no proper handing over by the previous Mayor to the currently suspended Mayor. Further that the former Town Clerk had removed all papers to his private home. These contributed to him not being aware of the first Report. I accept that evidence. However from A 10 – a letter from Mr Bob Loughman to Mr Vanva dated 7th March 2001 it appears that a report was attached to that letter that called for immediate action from the Mayor, the Town Clerk and the Treasurer. No responses were made or received from then.
    
22. There were no warnings given to the Mayor and his Councillors by the Minister before suspension. This included the right to be heard as to why certain directives were not complied with and why certain actions were done with out prior approval or authorization from appropriate persons in authority. The Petitioner’s were entitled to natural justice. This is in essence a right to the protection of the law afforded by Article 5 (1) (d) of the Constitution. I find that the Respondents have breached the Petitioner’s constitutional right to protection of the laws by omitting to comply with the rules of natural justice.
    

Conclusions

There will be judgment for the Petitioners.

23. The Orders sought in paragraph 2 is declined.
    
24. The Declaration sought in paragraph 4 is declined.
    
25. The Declaration sought in paragraph 3 is declined.
    
26. There will be an Order awarding Compensation to all the Petitioners for breach of natural justice. Under Article 6 (2) the Petitioners are entitled to receive Compensation which sums will be assessed later by the Court.
    
27. The Respondents will pay the Petitioners costs of and incidental to this action.
    

DATED at Luganville this 11th day of February, 2002.

BY THE COURT

OLIVER A. SAKSAK

Judge